Saskatchewan government argues pronoun law is best for gender-diverse children

Lawyers for the Saskatchewan government argued Thursday for a judge to dismiss a challenge of a law that requires parental consent when children under 16 want to change their names or pronouns at school.

Deron Kuski told court the law doesn't breach the Charter and is in the best interest of gender-diverse children.

He said children could be exposed to “potential harm” if they socially transition without parental consent.

“When we’re talking about it from the supportive parent perspective, which is the majority, then why don’t we want to achieve the best outcome for our kids going through this?”

In September, Justice Michael Megaw granted an injunction to pause the province's pronoun policy until court could hear the challenge. He wrote in his decision the injunction was necessary to prevent irreparable harm to gender-diverse youth, pending a full hearing.

Premier Scott Moe then recalled the legislature for an emergency sitting to pass the policy into law.

Kuski told court the Charter wasn't breached, because the government used the notwithstanding clause, a rarely used measure that lets governments override certain Charter rights for five years.

The judge said the concern is whether gender-diverse children who are at risk of abuse from their parents are able to speak with a trusted adult like a teacher.

“It’s not the bucket of parental consent or not. It’s the bucket of how do we deal with this child who has, frankly, an impossible situation at home,” Megaw said Thursday.

Kuski told court it's not a good situation when children are at risk of abuse, but most parents aren’t abusive.

“What I’m submitting to you is, the protection provided in the legislation in the abusive parents scenario is better than the uncertain and unknown consequences of doing it without knowledge of the parent,” he said.

The law says students who can't speak with their parents about name or pronoun changes are to be offered counselling.

Lawyers for UR Pride, an LGBTQ group in Regina, have argued the law limits the rights of gender-diverse youth and those youth should be entitled to a safe educational environment.

They have requested the court proceed with the legal challenge, saying the legislation is inconsistent with the Charter.

Adam Goldenberg, a lawyer representing UR Pride, told court the government's argument that children are "socially transitioning" in secret is insulting to gender-diverse youth and professional educators.

"No one has suggested for parents to be kept in the dark. If parents can be safely involved and informed, obviously they should be," he said.

Lawyer Ljiljana Stanic, who is also representing UR Pride, told court Wednesday the province did not apply the notwithstanding clause to Section 12 of the Charter, which covers the right not to be subjected to any cruel and unusual treatment.

Because Section 12 wasn't applied, she said, lawyers can argue how young people's rights are violated based on that section.

The judge could order the law to be of "no force and effect" on the basis of Section 12, Stanic said.

In the law, the province applied the notwithstanding clause to sections 2, 7 and 15 of the Charter. These sections deal with freedom of expression, liberty and equal protection.

Kuski said the province didn’t include Section 12, because it was not referenced in UR Pride’s original court argument.

He said the notwithstanding clause is a trump card.

“A new Charter argument really runs close to the line, waters you wouldn’t want to dip your toe into,” he said.

UR Pride’s lawyers have also argued the judge could offer a remedy by declaring the law violates the Charter, even though the notwithstanding clause has been used.

Stanic said such a declaration would send a message to gender-diverse youth, letting them know their rights matter.

Megaw reserved his decision for a later date.

This report by The Canadian Press was first published Jan. 11, 2024.